Long COVID: is it a disability and what do employers need to know?

It was announced by the Department of Health and Social Care (DHSC) earlier this year that an estimated 1 in 10 people who have had COVID-19 continue to experience symptoms and an impaired quality of life over 12 weeks after the initial infection. This condition has become commonly known as “long COVID”. There is very little currently known about long COVID and anecdotal evidence seems to suggest that the length of time for which individuals are affected and the extent to which they are affected varies from person to person.

Studies are currently underway looking at how to define long COVID, improving the diagnosis of the condition, and understanding the typical effects on a person’s health and ability to work.  This last area is likely to be at the forefront of many employers’ minds as we make our way out of the pandemic in light of the significant number of individuals seemingly affected by long COVID and may be  absent from work for significant periods of time .

ACAS has issued guidance for both employees and employers relating to long COVID in the workplace and the key matters employers will need to consider, namely whether long COVID is a disability, and how employers should manage sickness absence relating to long COVID.

Is long COVID a disability?

There is currently no universally accepted definition of long COVID, however the NHS refers to individuals experiencing a variety of symptoms for weeks, or even months, after the infection has gone such as extreme fatigue, shortness of breath, chest pains, “brain fog”, insomnia, dizziness, depression, temperature, joint pain, among others. It is becoming increasingly apparent that long COVID will often have a considerable effect on an individual’s physical and mental health and employers will therefore need to be mindful of the possibility that an employee with long COVID may be disabled for employment law purposes.

Under the Equality Act 2010, a person is defined as disabled where they have a “physical or mental impairment” and the impairment has a “substantial” and “long-term” adverse effect on the individual’s ability to carry out normal day-to-day activities. “Long term” means that the impairment has lasted or will last for at least 12 months or can come and go for, or is likely to last for, the rest of the person’s life.

Whether or not long COVID amounts to a disability will likely depend on the specific circumstances in relation to each individual employee. If an employee is considered to be disabled for employment law purposes then an employer who does not act appropriately in relation to that employee may be vulnerable to claims for disability discrimination and claims for failure to make reasonable adjustments.

However, due to the fact it is a new illness that is not yet fully understood, ACAS recommends that instead of focusing on whether long COVID is a disability, employers should focus on managing the employee’s absence appropriately and the reasonable adjustments they can make to assist an employee who has the condition.

Managing absence from long COVID and reasonable adjustments

Employers should be aware that the effects of long COVID can come and go which may result in short term intermittent absences as well as one prolonged period of absence. Employers should consider taking the same steps in relation to employees absent from long COVID as they would in managing the sickness absence of any other employee who is often absent or who has been absent from work for a long period. Such steps will include:

  1. Agreeing how and when to make contact during absence;
  2. Discussing ways that the employer can support the employee back to work as and when the employee is fit to work;
  3. Obtaining an occupational health report;
  4. Making reasonable adjustments to the workplace or how the employee works e.g. different working hours;
  5. Considering a phased return to work after a period of absence;
  6. Monitoring the employee’s condition; and
  7. Discussing what the employee wishes to say to their team about their illness.

Any reasonable adjustments should be made with the employee’s agreement and, wherever possible, with the benefit of medical and/or occupational health advice.

While it may be appropriate to commence a formal capability procedure if the employer has genuine and reasonable doubts about the employee’s ability to continue in their role, ACAS recommends that this should be a last resort and that employers should ensure they have exhausted other options first.

If you have any queries relating to long COVID, disabilities, managing sickness absence or any other employment law matter, please contact us.